On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-119-07PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Baxter.
Plaintiff, Thomas Wilson, appeals from an order affirming the decision of the Brick Township Zoning Board of Adjustment, set forth in a resolution dated August 5, 2009, denying plaintiff's application for bulk variances with regard to the location of a swimming pool on plaintiff's back deck. On appeal, plaintiff argues that the Board's actions were arbitrary, capricious and unreasonable, and he urges reversal. We affirm.
This matter has had a tortured history. Since 1999, plaintiff has owned property on Toledo Drive, Brick, New Jersey. The property is situated in a R-5, single family residence zone, and is improved with a single family house that backs on Barnegat Bay. The front of the house is located 41.6 feet from the front property line, and its back is located 18.5 feet from the rear property line. Additionally, plaintiff has riparian rights that extend 2.5 feet further to the bulkhead line. The property does not form a perfect rectangle. Rather, the west side measures 112.10 feet to the rear property line, whereas the east side measures 106.18 feet. This difference is manifest in the deck area to the rear of the house.
Following his purchase of the property, plaintiff expanded a pre-existing deck to cover the entire back of the property at an elevation of 54 inches above ground that extends beyond the bulkhead line by 4.80 feet. The deck, like the property, is not quite rectangular. The area of the deck is greater on the west side than on the east. The west side of the deck is further enlarged as the result of a setback to the rear face of the house on that side. Access to the deck is provided by two side-by-side eight-foot sliding doors, located on the more protruding face of the back of the house and opening onto the east side of the deck.
In addition to improving the deck, plaintiff constructed a sixteen-foot by eighteen-foot pool on the east side of the deck that extends slightly beyond the rear property line and within
1.35 feet of the bulkhead line. The project was completed without obtaining construction permits or required bulk variances. Litigation ensued, and plaintiff was fined.
In July 2006, plaintiff applied for the bulk variances required by his construction. They were denied by the Board, and that denial was affirmed in a subsequent action in lieu of prerogative writs. However, on further appeal to us, in a published opinion, we reversed the decision affirming the denial of a rear-yard setback variance for the deck, permitting zero setback, whereas the zoning ordinance required fifteen feet. Wilson v. Brick Twp. Zoning Bd., 405 N.J. Super. 189, 201 (App. Div. 2009). We held that plaintiff was not entitled to a variance pursuant to N.J.S.A. 40:55D-70c(2) (C2 variance) because plaintiff's improvement was of no apparent benefit to the community and because plaintiff's illegal construction could not be said to advance the purposes of the Municipal Land Use Law (MLUL) 40:55D-1 to -163. Id. at 197-200. However, we found the granting of a variance pursuant to N.J.S.A. 40:55D-70c(1) (C1 variance) rear-yard setback variance with respect to the deck to be supported by the record. We stated:
None of the parties have contested that the home is a lawfully existing structure on the property. The home, as constructed, has a forty-one foot front yard setback and an eighteen foot rear yard setback. Because of the location of this lawfully existing structure on the property and the fifteen foot required rear yard setback for a deck, a strict application of the zoning ordinance would result in allowing only a three foot deck. The resulting situation would certainly present "peculiar and exceptional practical difficulties" for the homeowner. Further, the proofs indicate that a variance with respect to the rear yard deck setback would not be a substantial detriment to the public good or impair substantially the intent and purpose of the zoning plan and ordinance. Consequently, because the lawfully existing dwelling's placement on the lot creates an extraordinary and exceptional situation resulting in peculiar and exceptional practical difficulties to an owner who wishes to place a deck larger than three feet in his rear yard and because none of the negative criteria would be affected by this development, the variance with respect to the rear yard deck setback should have been granted. [Id. at 201 (footnote omitted).]
In addition to the rear-yard setback variance sought for the deck, plaintiff had also sought and been denied rear- and side-yard setback variances for the pool; side-yard setback variances for the dwelling, deck and a shed; and a maximum lot coverage variance. On appeal, we declined to decide whether such variances should have been granted, finding that neither the plaintiff nor the Board adequately addressed the criteria for a C1 variance as they pertained to these other requests.
Id. at 202-03. In doing so, we noted that plaintiff's expert had testified that construction of the deck and pool within the zoning requirements was "impossible," but had given no detail to support this conclusion, which the Board was not required to accept. Id. at 202. We stated:
The open question is whether the strict application of the municipality's zoning ordinance to plaintiff's desire to improve the rear yard of his property with a deck and pool results in peculiar and exceptional practical difficulties due to the size of the rear yard where the limited rear yard is the result of the apparently legal placement of the house on the lot. If plaintiff is able to demonstrate that to defendant, he must then demonstrate how he is unable to conform his ...